District of Columbia References laws & HR compliance analysis

District of Columbia References: What you need to know

Reference checks are a useful way for employers to gather information about applicants that they might not discover through the application and interview process. However, despite the usefulness of reference checking, many employers are legitimately concerned about lawsuits from former employees based on information provided in response to a request for a reference. This creates a quandary for employers.
Employers are also concerned about liability for the actions of employees where the company failed to conduct a thorough reference check. The District of Columbia, like many states, has recognized the tort of negligent hiring (Fleming v. Bronfin, 80 A.2d 915 (D.C. Mun. Ct. App. 1951)). Employers may be liable for intentional or negligent acts of an employee if they knew or should have known of an employee's dangerous propensities. Therefore, employers should be diligent in conducting reference and background checks on new employees, particularly when the job involves contact with the public.
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To deal with employers' reluctance to provide information about former employees, a number of states have enacted laws “immunizing” employers against employee claims over such disclosures. The protections provided by these immunity laws are from claims for defamation of character—libel and slander. The District of Columbia has not enacted a reference immunity law. However, the District of Columbia Court of Appeals has held that a release from liability may shield an employer from liability when providing a negative reference (Woodfield v. Providence Hospital, 779 A.2d 933 (D.C. Ct. App. 2001)).
In this case, the employer's handbook contained a provision that the employer would release only ...

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